LEGAL NEWS 12.07.2010

Chavan defends Centre on border issue
Special Correspondent
In a bid to quell the discontent over its affidavit in the Supreme Court on the Maharashtra-Karnataka border issue, the Centre is likely to make it clear in Monday’s hearing that this is not its final stand, according to reliable sources in the Maharashtra government.
Last week, the Centre, in its affidavit, opposed Maharashtra’s application challenging the constitutional validity of certain provisions of the States Reorganisation Act, 1956, and the Bombay Reorganisation Act, 1960. The suit was filed by Maharashtra in 2004 seeking transfer of certain Marathi-speaking areas of Belgaum and other parts of Karnataka to it. Chief Minister Ashok Chavan on Sunday expressed confidence in the Central government. He said he had sought an all-party meeting with the Prime Minister on July 14 and he would know by Monday whether that was possible. He said there was no change in the State’s stand and it was firm that 865 villages and other parts of the border areas should come to Maharashtra.
Addressing a press conference on the eve of the monsoon session of the Legislature, Mr. Chavan denied the Opposition charge that the Centre or Congress president Sonia Gandhi were insensitive to Maharashtra’s sentiments. The Centre had no antipathy towards the State. He clarified that the Centre’s affidavit was in response to an interim application filed by Maharashtra and was not against the main petition. The issue should not be politicised and all parties in the State were one on the border issue.
The Shiv Sena and the Bharatiya Janata Party attacked Mr. Chavan for failing to secure any success in three important cases in the Supreme Court.
The Opposition boycotted the Chief Minister’s customary tea party on the eve of the session.

Time to review 27% OBC quota in education?
Dhananjay Mahapatra, TNN, Jul 12, 2010, 02.35am IST
NEW DELHI: This is the third academic year after Supreme Court on April 10, 2008, upheld the legislation providing 27% reservation for other backward castes (OBCs) in admissions to central educational institutions. The apex court had excluded the creamy layer from benefiting under the 27% quota and said unfilled seats would be go back to the general category. The government had also assured the court that general category seats would not shrink as the institutions would create more seats to absorb the reservation requirement. We can discount the chaos of filling the seats created for OBCs under the Central Educational Institutions (Reservation in Admissions) Act, 2007, in 2008-09 as teething problem despite the admission process getting extended till October. However, the data for the next two academic years gives an impression that the quantum of 27% may have been far in excess of what was needed to meet the demographic demand. In 2009-10, Jawaharlal Nehru University (JNU) transferred 83 of the 413 seats reserved for OBCs to the general category. Of the 10,183 OBC seats in Delhi University, there were no takers for nearly 2,300 seats. This year too, DU is witnessing a similar story. University officials are fearing that nearly 6,000 seats may get transferred to general category for want of suitable candidates from backward classes, despite the cut-off being 10 marks less than the last general category candidate taking admission in the institution. The general category may not be complaining. But the increased number of seats will definitely put pressure on the already stretched faculty, library facilities and allied educational resources available with the institution. This is what happens when the political class, without any scientific survey, fixes quota without identifying what constitutes backwardness in the social and educational maze. The Supreme Court had repeatedly warned against this, right from Indra Sawhney judgment in 1992 till the Ashoka Kumar Thakur judgment in 2008. Socially and educationally backward classes (SEBCs), who are entitled for the 27% reservation in government-run colleges and institutions, are at present determined solely on the basis of the backwardness of their caste. In both these judgments relating to OBC reservation in employment and admission, the apex court had stressed that caste could not be the sole criterion for identifying the social and educational backwardness of a person. So, without a proper identification of SEBCs, their number was guesstimated and a percentage of seats was kept reserved for them. The apex court realised it but was hampered without contradicting data to fault the socially affirmative action. That is why it suggested periodic review of the quantum of quota as well as the necessity of reservation in admission for SEBCs. “There must be periodic review as to the desirability of continuing operation of the statute — Central Educational Institutions (Reservations in Admission Act, 2007. This shall be done once every five years,” the five-judge constitution Bench had said in Ashoka Thakur case. Is the government prepared to review working of the 2007 law? If not, then it could utilise the opportunity provided by the census exercise presently underway to determine the exact number of persons to be included in the socially and educationally backward category to help work out the percentage of reservation needed.

SC calls bullfight dangerous, wants strict measures
Express news service
Posted: Mon Jul 12 2010, 03:54 hrs New Delhi:
Terming the traditional bullfight or Jallikattu in Tamil Nadu as a money-spinning industry with little regard for human safety or animal welfare, the Supreme Court has asked the Animal Welfare Board (AWB) and Tamil Nadu to explore stringent measures to deter people from patronising the event.
A Bench of Justices R V Raveendran and H L Gokhale last week said the state government and the AWB ought to debate possibilities to raise the advance deposit to Rs 20 lakh from the present Rs 2 lakh to
curb the sport. The deposit would be used by the state to compensate for the human casualties which occurred during the event.
The court, in its order on June 9, further said that the government should restrict the period of the event to two months on an annual basis. Currently, bullfights are organised from January to May every year. Both authorities have to get back to the SC with their opinions within the next four weeks.
“It has become an industry. We do not know whether people are making money. It should not have even spread towards summer but it is extending towards the monsoon,” the bench said. “Think of the danger to human beings. The bulls become ferocious and run amock after they are fed liquor. This must be restricted to two months.”
The apex court’s remarks came after Solicitor General of India Gopal Subramaniam submitted that the state had come out with Tamil Nadu Regulation of Jallikattu Act -2009 to restrict the sport. He said that 129 spots have been identified for conducting bullfights, but last year only 46 were used for the simple reason that many organisers were unable to afford the deposit of Rs 2 lakh.
Holding the event on an un-notified area would also invite imprisonment of one year, he demonstrated the government’s cause.
The court, however, said bullfights should be restricted to January and February during the Pongal (Tamil New Year) season. The hearing was on a PIL filed seeking a ban on the sport as it endangered human lives and also amounted to cruelty on animals.

Maha explores legal options to ban Laine’s book on Shivaji
Press Trust Of IndiaMumbai, July 11, 2010
First Published: 20:55 IST(11/7/2010)Last Updated: 20:59 IST(11/7/2010)
With the Supreme Court lifting the ban on James Laine’s controversial book on Chhatrapati Shivaji Maharaj, Maharashtra Government today announced setting up of a three-member committee to explore options to stop its printing and circulation in the state. “At no cost, there should be printing and circulation of the book in the state,” chief Minister Ashok Chavan said addressing a press conference after the customary session eve tea party which was boycotted by the Opposition.
Home Minister R R Patil said the state government would write to the Centre recommending a stringent Act to stop defamatory writings against the iconic figure.
The Chief Minister said his government shared the strong sentiments of the people of the state over the objectionable references made to the legendary Maratha king in the book.
“Since, the apex court has given its verdict of lifting of the ban, the state has decided to proceed legally in this matter. The committee comprising Advocate General, Law Secretary and Additional Chief Secretary(ACS) Home will explore legal options and advise the government accordingly,” Chavan said.
Patil said the committee will give its views on the matter in two days. “The Centre has to enact such a legislation. The state government would write to the Centre recommending a stringent act,” he added.
On whether action will be taken against historians in the state especially in Pune for providing defamatory information about Chhatrapati Shivaji Maharaj, Patil said police had questioned the historians mentioned in the book by Laine and all of them had categorically denied that they had provided any such information.

Legal mechanism to rein in khaps by mid-August
Dhananjay Mahapatra, TNN, Jul 12, 2010, 02.15am IST

NEW DELHI: Law Commission is soon expected to come out with comprehensive suggestions on a legal mechanism to deal with khap-dictated honour killings. The report of the commission headed by Justice P V Reddy, expected by mid-August, could come to the rescue of the UPA government, given the division of opinion within the Union Cabinet over the efficacy of home ministry’s bill suggesting amendments to the Indian Penal Code to rein in khaps. Justice Reddy told TOI that the issue was referred to the commission some time back but it was taken up in right earnest only after he assumed charge as chairperson in April. “We have studied the issue from various angles, including the social aspect, and have held wide consultations with public bodies,” he said. Asked about the legal issues being deliberated by the commission, Justice Reddy said, “It is basically two — whether an amendment to the existing penal laws would serve the purpose or a wholesome standalone law is needed to deal with the menace.” He refused to elaborate further. In fact, the issue being deliberated by the commission was the same that created a debate within the Cabinet on Thursday. While the home ministry’s bill proposed amendment to Section 300 of IPC to insert an additional clause “fifthly” to include all khap participants in a murder decision to be liable for the crime of honour killing, legal eagle Kapil Sibal had a different take. According to Sibal, the issue was not as simple as just amending Section 300 to have an additional clause, which in reality could be a tool for harassment of innocent people by police. He said the IPC already provided for making a person a co-accused in a murder case if he had been always a party to the planning and conspiracy to a killing, thus the proposed amendment was redundant. However, Sibal and other colleagues suggested that one could explore the need for a separate law to specifically deal with honour killings on the lines of Prevention of Corruption Act. The issue was then referred to a group of ministers (GoM) for wider consultation. Justice Reddy said the commission had already held wide-ranging consultations and crystallised certain views. “Now we have to carefully examine the contents of all these deliberations before giving our report to the government. It will take some time,” he said.

Afzal should be punished: Muslim leader
PTI, Jul 11, 2010, 09.57pm IST

NEW DELHI: Parliament attack case convict Afzal Guru, who is on death row, should be punished as decided by the judicial system of the country, a top leader of a prominent Muslim organisation said. General Secretary of Jamiat Ulema-e-Hind Maulana Mahmood Madani said those apprehending strong protest from the Muslims if the punishment against Guru was carried out actually want to gain “political mileage” out of the issue. “I do not think the community will oppose it. Some crazy people may oppose it but it will not be the community,” he told a hindi news channel, replying to a question. “There is a judicial system in the country and people have full faith and confidence in it. After the judicial process, it has been proved that the man is guilty.” Without naming Guru, Madani said if somebody has committed a crime then he must be punished. “I can say with full confidence that if somebody has committed a crime then he must be punished at any cost what ever be the repercussions. You should do justice,” he said. Asked whether some people were trying to defame the community by saying that it will react strongly if Guru is hanged, he replied: “yes”. “In a way they are defaming the community. They want to take political benefit,” he said. However, he added he cannot give “guarantee” that there will be no protest or violence if Guru’s sentence is carried out. The Supreme Court had in 2005 upheld the Delhi High Court verdict confirming the trial court judgement which had awarded capital punishment to Guru for his role in the conspiracy behind the December 13, 2001, terror attack on Parliament.

‘State case had no basis’
Dharmendra Jore, Hindustan TimesEmail AuthorMumbai, July 12, 2010
First Published: 03:03 IST(12/7/2010)Last Updated: 03:06 IST(12/7/2010)
The Maharashtra government’s case against James Laine’s controversial book on Shivaji in the Supreme Court had weakened because the state could not prove it hurt religious sentiments. Sources in the Law and Judiciary department told Hindustan Times that the state’s case did not have any basis like it had when books of authors like Salman Rushdie were banned. “We couldn’t e that Shivaji’s defamation amounted to hurting people’s religious sentiments,” said an officer from the department on the condition of anonymity.
The state government had banned Laine’s book, Shivaji: Hindu King in Islamic India, in 2004 but the Supreme Court on Friday upheld the Bombay High Court’s verdict that the ban be lifted with immediate effect.
Chief Minister Ashok Chavan said, “As far as banning the book is concerned, we share strong sentiments with the Opposition. We will ensure that the book is not sold or circulated in the state.” Chavan, however, did not have specific information on how the government planned to do that.
“We have formed a committee of the Advocate General and Secretaries of the Home and Law and Judiciary departments to take further legal action in the case,” Chavan said.
The Maharashtra government has demanded that the Centre frame a law to enable states to ban books that defame any person, dead or alive, who is revered by the people.
The state’s failure to get the book banned has triggered widespread violence.
Opposition parties boycotted the chief minister’s customary tea party held on Sunday, the eve of the monsoon session of the state Legislature.
They demanded Law and Judiciary Minister Radhakrishna Vikhe Patil’s resignation for the fiasco. Chavan said there was no merit in the Opposition’s demand.
“But I will inquire deeply in this case and other cases (border dispute and Best-5) that we have lost in the courts.”
Home Minister RR Patil, who was instrumental in banning two of Laine’s books in two years, demanded a stringent law.
“We will request the Centre to frame a law for this. Nobody is going to accept derogatory remarks against any person of the stature of Shivaji Maharaj,” he told journalists after the tea party.
An officer from the Law and Judiciary department said that the state had the option of filing a review petition in the Supreme Court.

Law dept not consulted in Best-5 case
Yogesh Naik, TNN, Jul 12, 2010, 02.43am IST
MUMBAI: While lakhs of SSC and thousands of ICSE students await the result of the Supreme Court hearing on the best-5 rule on Monday, it has come to light that the state education department did not consult either the law and judiciary department or the attorney general before clearing the file. This, despite senior ministers asking the education department to refer the file to them. Even education minister Balasaheb Thorat confirmed that he had not sent the file to the law and judiciary department. Incidentally, the state government has clarified that if the judgment is delayed, it will announce the admission process to junior colleges on Tuesday. A senior minister said, “I had personally told chief minister Ashok Chavan to tell the education minister to consult the state law and judiciary department. We have already lost miserably in the high court. What’s the point in doing a lot of legal consultations now? This should have been done much earlier. The law and judiciary department scans every file closely and gives its honest opinion.” The chief minister is quite hopeful that the government will win the Best-5 case in the Supreme Court, but Thorat is not. He agreed that the law and judiciary department was not consulted and neither was the AG. “The SSC board is an independent body. They had consulted a legal firm, Little and Company, from whom they take advice. The proposal was completely studied. Besides, we had invited suggestions and objections from people and they were heard for nearly two months. Since the SSC board is an independent body, we did not consult the state law department,” said Thorat. The state legislature is starting from Monday and the state education department is likely to face heavy criticism for the mess created for admissions to junior colleges. The Opposition will also question Thorat on how and where the government failed. Thorat was initially given the agriculture portfolio and was given an additional charge of school education till alternate arrangements are done. The Opposition had also made a demand to shift Thorat. But the CM recently said that he was doing good work and there was no need to shift him. “There are many ministers with additional charges,” Chavan had added.

Healthy criticism usher in a whiff of fresh air
First Published : 12 Jul 2010 08:11:23 AM IST
Last Updated : 12 Jul 2010 10:26:37 AM IST

‘A life which is not criticised is not worth living’ is an old adage.
There is a vertical division of opinion among mainstream political parties about the right of citizens and politicians to criticise judicial verdict. This is a subject to be analysed against the backdrop of history and contemporary socio-economic political milieu to generate more light than heat on the issue. To err is human and individuals and institutions, including Judiciary, can err. But the impact and extent of error can be minimised if institutions and individuals can operate in a system of checks and balances in a civil society. When Deng said “Let a hundred flowers bloom: Let a hundred schools of thoughts contend “ he suggested that clash of ideas is a healthy sign of a vibrant society which aims at progress and welfare. Again German philosopher Hegel propounded the idea of Dialectics, and he meant that it is quite natural for thesis and anti-thesis to interact and culminate in a Synthesis as happy denouement of mental thought process. History is replete with mistakes of old judicial and quasi-judicial bodies which made permanent scars on human conscience and exploded the myth of judical infallibility.
Socrates, the first free thinker of human civilization, was awarded capital punishment by then Greek authorities.
Pontius Pilate , Roman Governor vested with judicial and administrative powers sentenced Christ to cricifixion after declaring Christ was guiltless.
Holy Inquisition, the apex judicial court of the Church, awarded brutal punishments to scientists and thinkers for believing in ideas opposed to views of the Church.
More recently, many judgments pronounced by learned judges prove that judiciary Itself is a divided house.
In the most important constitutional cases of Golaknath case and Keshavananda Bharathi case about powers of Parliament to amend fundamental rights, full constitutional benches took divergent views and the majority opinions prevailed. All the learned judges studied the same Constitution and laws and heard the same arguments, but subjectivity influenced their judgements and hence the major differences of opinion on crucial subject of vital import. Right and wrong are relative and Relativity operates not only in science but in human affairs too. The trajectory of certain cases from lower courts to apex court shows that sometimes judgments take a zig-zag course justifying Soli Sorabji’s observation about relativism of judiciary. Some of the rules in the statute books of India date back to the colonial era of 19th century. Contemporary relevance or irrelevance of many rules can be determined only through a process of free, frank and fearless and uninhibited discussion, dialogue and debate. The concept of infallibility of judiciary is pernicious to society.
Laws to be enacted by legislative bodies and their interpretation by courts should be a reflection of the needs and aspirations of the people. Legislature, Executive and Judiciary should function in tandem for the general health of body politic. Unbridled freedom or right for any system or institution can wreak havoc with the country as it happened with monarchy, dictatorship , feudalism etc of the past.
In British Judiciary, there were instances of humorous repartees and retorts between Bench and Bar and both took them in a spirit of humour and tolerance without malice. The basic philosophy and objective of law are an old parody of Biblical verse written by A G Gardiner “Man is not made for rules ; but rules are made for man. “ There is a school of thought which insists that criticism of judiciary should be confined to ideological discussion only.
Such a criticism bereft of ground realities of national life and concrete situations will only lead to pious wishes like Directive Principles of State policy in the Constitution devoid of any innate strength to deliver the goods. Modernism and post-modernism have influenced literature, art, music, philosophy, business etc, but jurisprudence is a lover of the past which keeps at bay every modern trend.
The obsolete and archaic language itself is a barrier which fortifies an anachronistic legal system which keeps common man at arm’s length. Institutions of Legislature, Executive and Judiciary have suffered erosion of credibility.
It will be a stagnant society which forbids criticism and prevents change of rules and conventions. A healthy criticism is essential to usher in a whiff of fresh air in society just as the incisive writings of Voltaire and Rousseau sent waves of Liberty, Equality and Fraternity across the world.

India-UK to enhance collaboration between ‘judicial and legal systems’
London, July 11(ANI): Union Law and Justice Minister Dr.M.Veerappa Moily has met British Secretary of State for Justice, Kenneth Clarke to enhance relationships between the two countries in all spheres, including the judicial system.
Moily said that his meeting with the Secretary of State on Wednesday was very warm, cordial and fruitful.
“Kenneth Clark told me about the high regard he has for our Prime Minister Dr. Manmohan Singh and how much he admires the transformation that has taken place in India, particularly in the Indian economy, under Dr. Singh’s leadership,” Moily said in a statement.”Clark also acknowledged India’s powerful regard for the rule of law and spoke of the challenges the Indian judicial system faces,” he added.He also had meetings with the Lord Chief Justice and the Attorney General.Besides, he had Round Table discussions with the Bar Council of UK, Law Society of UK, Society of Asian Lawyers and the London Court of International Arbitration, which he said were “constructive and purposeful”.He also interacted with several UK law firms and the UK India Business Council, and visited the Supreme Court of UK to witness the proceedings and attended a reception at the House of Commons.The objective of these discussions was to enhance collaboration between the judicial and legal systems of the two countries by sharing mutual experiences.”My interactions with the UK authorities have helped me understand the functioning of the judicial system in the UK,” Moily added. (ANI)

SC status to dalit Muslims might wait for some time: petitioners
Submitted by admin4 on 12 July 2010 – 10:06am.
By Md. Ali,,
New Delhi: UPA government has done it again. It was the 8th extension, which the Central government sought for the hearing of a PIL lodged in Supreme Court, for inclusion of Dalit Muslims in Scheduled Caste category, by Akhil Maharastra Khatik Samaj (AMKS).
Representing the government side, Gopal Subramanyam, solicitor general of India, told the apex court that the government needs some more time to take a stand on this whole issue, particularly now when Ranganath Mishra Commission has submitted its report, recommending SC status to the Dalit Muslims.
To inform our readers, the National Commission on Religious & Linguistic Minorities or Ranganath Mishra Commission, as it is popularly called, headed by Justice Ranganath Mishra, former Chief Justice of India, submitted it’s Report to the Prime Minister on 22 May, 2007.
The Ranganath Mishra Commission report has recommended the government to delink religion for the consideration of SC status and to make Schedule Caste net as religion neutral.
Reportedly the government counsel said that the proposal is yet to be discussed by the concerned high power Group of Ministers (GoM) which is Cabinet Committee on Political Affairs (CCPA).
Talking to, Shamsuddin Kadir from the legal cell of AMKS pointed out that, “It has been quite a journey for us in our decade old fight to get SC status to dalit Muslims. After 8 extensions and delays the situation now is that, it is the extreme and climax of the case. The UPA government is just adopting the delay tactics, which is the easiest way out when you don’t want to do any thing. In the next hearing we will request the apex court not to give further time to the government.”
The actual petition was filed by AMKS on 25th January 2008 but in spite of the delays and 8 extensions he sees some positives developments about the case.
“There used to be a time when no body used to turn up from the government side. It is a positive path breaking achievement for this case that the government has responded to our petition.”
He is also hopeful that the government doesn’t have much option but to give dalit Muslims Schedule Caste status.
“One day it has to include dalit Muslims into SC category because its own Commission, in the form of Ranganath Mishra Commission has recommended it and constitutional body like National Commission for Schedule Caste and Schedule Tribe has cleared it. So there is nothing it can put against the proposal, besides what has been happening with dalit Muslims is completely unconstitutional. That is why it is very clear for the apex court to see that it is out and out unconstitutional. ”
Akhil Maharastra Khatik Samaj (AMKS) is not alone in fighting for this, Franklin Xaviers along with center for Public Interest Litigation, had filed a PIL in the Supreme Court, way back in March 2004, for the dalit Christians and Muslims to be included in Schedule Caste category. Their side is represented by well known human rights lawyer Prashant Bhushan.
The story with their PIL is the same as that of AMKS. Their next hearing is on 15th of July. Franklin who is the second petitioner in this case, told this correspondent, that they will request the apex court not to give further time to the government and insist for an immediate reply from the government.
Many believe that government might be delaying because of political considerations. But Franklin has solution for that also.
“If legal means is not enough and the government wants political campaigning then for that we have called for a nation wide rally on July 21, 2010, to express the urgency and gravity of Christians’ Muslims’ and secular-minded peoples’ for the just demand for the SC status to dalit Muslims and Christians.”
He pointed out that, this rally is expected to be attended by more than 15,000 dalit Christians and dalit Muslims. Political leaders like D Raja, Brinda Karat, Ali Anwar prominent among others, are expected to address this rally.
What is the problem and why Dalit minorities need to be given SC status?
As far as the issue of SC status to Dalit Muslims and Christians is concerned, from 1935 to 1950, all Dalit irrespective of their religion, were provided with reservations. However, on January 26, 1950 when constitution of India came into force, an order was passed by the then president of India, Dr. Rajendra Prasad, which denied SC status to Dalit of any community other than Hindu.
The third paragraph of the order said, “notwithstanding anything contained in para 2, no person who professes a religion different from Hinduism shall be deemed to be a member of the Scheduled Castes.”
Now the problem with this presidential order was that it was against, many provisions enshrined in the constitution, like Equality before the law (Article 14), Prohibition of discrimination on grounds of religion (Article 15) and Freedom to profess and practice any religion (Article 25).
That is why probably, there were two amendments first in 1956 and second in 1990 in the Constitution and Sikhs and Buddhists respectively were included in the Scheduled Caste category and thus they were allowed to avail the benefits of reservation.
Dalit Muslims
Across the country there are around 35 castes of Indian dalit Muslims which include Nutt, Bakkho, Khatik, Bhatiyara, Kunjra, Dhunia, Kalal, Dafali, Halakhor, Dhobi, Gorkan, Meershikar, Rangrz, Darji, Mochis, Mukris and Garudis etc.
Their condition is worse than any other community in India, a fact which was proved by the Sacchar Committee report. SC status to Dalit Muslims has been overdue for a long time now, because it’s not only that they have been a part of the same profession but it is also a fact, that they have been going through the same social discrimination as their counterpart Dalit Hindus.
Many social scientist point towards increasingly good condition of Dalit Hindus, Sikhs and Buddhists, and for which they give credit to the reservation, they enjoy because of their SC status.

‘Case backlog due to lack of settlement culture’
Posted by IANS-CT in National
New Delhi, July 10 (Calcutta Tube) Chief Justice of India S.H. Kapadia Saturday said that the absence of a settlement culture among litigants was the single most important factor in the flooding of courts with cases.
He said that in foreign countries, people prefer settlement over litigation and made a specific reference about the prevalence of this culture in Taiwan in his inaugural address at the two-day National Mediation Conference of judges of the Supreme Court, high courts and eminent jurists.
Winning a case and not settling it is core to the mindset of people who have very big egos, Kapadia maintained.
Coupled with this, people have little appreciation for the value of time. Thus, for recovering Rs.5, people will spend 15 years in the courts, he pointed out.
Kapadia said that the real challenge is to develop a settlement culture across the board and in this, the role of the mediator was much more important than that of the courts.
He said that the court presents the litigants with a win-lose scenario whereas in mediation, one has to create a win-win situation for the contending parties.
For making mediation a success, Kapadia called for judicial, bar and legislative reforms.
He underlined the need for good mediators who, besides being well trained and skillful, must have wisdom. He said at present there was no proper training of the mediators, particularly to handle commercial disputes.
Kapadia called for good training programmes for mediators, codification of the concepts of mediation in each sector and making them available to mediators who in turn would train others.
Justice Altamas Kabir of the Supreme Court said that judicial officers could not be faulted for delays because of the filing of large numbers of cases.
He said that a win-win situation that is provided by mediation also ensures continuation of relationship between the contending parties whereas the win-lose situation related to litigation spells termination of that relationship.

CIC can peruse oil-for-food scam file: Supreme Court
The Supreme Court has dismissed the Enforcement Directorate plea seeking exemption from production of documents related to investigations into the “oil-for-food” scam before the Central Information Commission.
The Commission had directed the ED to produce the file of the probe into the scam for its perusal to decide on its disclosure under the RTI Act.
The scam led to the ouster of former External Affairs Minister Natwar Singh from the Cabinet in 2004 for his alleged role.
The bench comprising Justice A.K. Ganguly and Justice G.S. Singhvi trashed the arguments put forth by the government against the production of file before the CIC. In his observations, Justice Ganguly said CIC has powers to peruse the file. He said there was so much of corruption in the country and the RTI Act was a “breath of fresh air”. He said the Act has even been applied to the judiciary and “we welcome it.”
“The ED kept saying that they are investigating the case for the last five years but they are shying to show the progress to Central Information Commission. The file will now have to be shown to the CIC,” Prashant Bhushan, senior lawyer who appeared for applicant Arun Agrawal said.
RTI applicant Mr. Agrawal had sought the entire file containing note sheets relating to the report of Virendra Dayal, appointed by the government as special envoy to coordinate with UN officials on the Paul Volcker Committee report.
After initial reluctance and repeated transfers, the Finance Ministry accepted that the file was with the Enforcement Directorate, which is an exempted organisation under the transparency law.
The Paul Volcker Committee was set up by the United Nations in April 2004 to probe corruption and fraud in its Oil-for-Food Programme in Iraq, in which name of former External Affairs minister Natwar Singh also allegedly figured as a beneficiary.
The Central Information Commission had directed the Enforcement Directorate to produce the file before it prior to deciding on the records’ exemption from disclosure under the RTI Act.
The Enforcement Directorate had challenged the decision in the High Court, pleading that the CIC had expanded the scope of the appeal pending before it.
It said the Commission cannot call for records pertaining to ongoing investigations in the light of its limited powers.
However, the High Court had said “CIC has jurisdiction to decide whether proviso to Section 24 (1) of the Act is applicable and whether conditions mentioned in section 8(1) of the Act are satisfied. To satisfy and have a just and fair decision, CIC can direct production of records and examine them.”

Nityananda commences preaching
Posted: Sun Jul 11 2010, 22:15 hrs Bangalore:
With the Karnataka High Court lifting conditions imposed on his spiritual activities, self-styled godman Nityananda Swami, facing rape and other criminal charges, today resumed religious discourses and delivered a talk on freedom at his Bidadi ashram.
Earlier, while granting bail to Nityananda the court had last month observed he had fallen short of his image as a spiritual head and restrained him from conducting spiritual preaching classes except yoga and meditation.
However, following an interlocutory application from Nityananda that stated that the conditions took away his freedom of speech, the court last week relaxed them.
Apart from his ashram members, more than 100 visitors attended his religious discourses, ashram sources said.
Delivering his first public discourse after nearly 80 days, Nityananda recalled his life in prison. After his arrest in April, he was released on bail on June 13.
Nityananda was embroiled in a controversy after a purported video footage showing him in a compromising position with a Tamil actress was aired on some local TV channels in March. Cases of rape and other offences were registered against him in Tamil Nadu and transferred to Karnataka.

Court curbs on converting park into water tank
IANS, Jul 11, 2010, 05.59pm IST

NEW DELHI: The judicial battle of the residents of the Rohini neighbourhood to save a park has started on a positive note with the Delhi High Court restraining, for now, the civic agencies from converting the green area into an underground water tank. “Till further orders, the respondents (civic agencies) are directed to maintain status quo in regard to the site in question,” Justice SN Aggarwal said while restraining the Delhi Development Authority and the Delhi Jal Board. The court’s direction came on a petition filed by the Residents Welfare Association of Rohini. The petition said that there was only one park in the neighbourhood with 13,000 residents and its conversion into a a tank would harm the environment. “Destruction of the park and the playground would adversely affect the ecological balance and healthy environment in the area,” said the petition. It also said that the court must direct the authorities to use the vacant space nearby for the construction of the tank. The court, after hearing the arguments, stayed the construction of the tank in the park and directed the government and civic authorities to file their replies. The next date of hearing is July 22.

UoP bans first-year degree admissions at 249 colleges, 95 institutes
Vishwas Kothari, TNN, Jul 12, 2010, 03.08am IST

PUNE: The University of Pune (UoP) has released a revised list of 249 affiliated colleges and 95 recognised institutes, located across Pune, Ahmednagar and Nashik districts, asking them not to admit students to the first-year degree courses for the academic year 2010-11. The university directive comes on account of the failure of these colleges and institutes to appoint full-time principals/directors before the May 31, 2010 deadline that was set by the Supreme Court. Wasudev N Gade, director of UoP’s board of college and university development (BCUD), has cited the apex court’s order besides the state government’s order of January 30, 2010 while justifying the directive. The revised list has been posted on the UoP’s official website: Gade’s letter, however, does not specify the action to be taken against those colleges/institutes which go ahead with admissions in defiance of the university’s directive. The action is critical, considering that admissions to degree-level institutions, particularly arts, science and commerce colleges, are already into the final stage. The university has a total of 612 affiliated colleges and more than 200 recognised institutes across the three districts. Soon after the May 31 deadline, the university had declared that there were 340 affiliated colleges and 132 recognised institutes, which were operating without the key appointees. However, some of these colleges/institutes had initiated the process for filling up the key vacancies while some others preferred moving the Supreme Court to seek a fresh extension of the deadline. The apex court did grant a six-month relief to those colleges convinced the court about the genuine efforts taken for filling up the key posts. The relief, however, is applicable only to those colleges/institutes which moved the apex court. On its part, the university has taken a position that it won’t allow admissions to first-year degree courses at those colleges/institutes, which did not take any effort to appoint principals/directors. In between, the UoP held a special camp at the varsity campus to sanction its approval to candidates appointed as either principal/director by various institutes. All this brought down the number of colleges and institutes without the key appointees from 340 to 249 and 132 to 95, respectively. According to the revised list, Pune district has maximum 136 colleges and 52 institutes where first-year admissions have been banned. Nashik district has 59 colleges and 31 institutes while Ahmednagar district accounts for 54 colleges and 12 institutes. It may be noted that the Nagpur bench of the Bombay high court had pronounced a verdict on December 3, 2008, laying a time-bound programme for all government-run, aided and unaided colleges and recognised institutes to ensure that they have full-time principals/directors in place by May 31, 2009. The state universities were asked to act against the colleges/institutes failing to meet this deadline by banning admissions to first-year degree course at the defaulting institution and initiating de-affiliation process in case of continuing default. Several colleges/institutes in the state had moved the Supreme Court against the high court verdict. The apex court had then granted a year-long extension till May 31, 2010 for the institutions to effect the key appointments.

Ambiguity over DOB rectified after HC order
Express News Service
Posted: Mon Jul 12 2010, 01:54 hrs Ahmedabad:
A Woman from Dakor in Kheda district had to pass through three rounds of court litigation to get the erroneous date of birth in her Birth Certificate and School Leaving Certificate (SLC) rectified and get the same inserted in her passport.
The round of petitions ended at the Gujarat High Court recently after it ordered the Regional Passport Authority to issue her a new passport with the updated date of birth.
The woman has been identified as Khambholiya Jaimini. Due to some mistake, Jaimini had different dates of birth in the Birth Certificate and the SLC. She even got a passport with her date of birth as mentioned in the SLC.
But the difference of dates in the two documents became a hurdle for her when it came to getting a visa for a visit abroad. She approached the Regional Passport Authority to get the date changed in the SLC, which in turn, asked her to get an order from a competent court.
Initially, she moved the Gujarat High Court with a petition for the remedy to her problem, but withdrew it and approached the concerned court of Judicial Magistrate First Class (JMFC), Dakor. After an inquiry into the issue and after issuing a public advertisement, the JMFC ordered the school authorities to change the birthdate of Jaimini. The school authorities complied with the order.
But when she again approached the passport authorities to get a new passport with the changed date of birth, they asked her to get an order from the HC.
After considering the order of the Dakor JMFC, the High Court ordered the Regional Passport Authority to issue Jaimini a new passport with the changed date of birth. The court also directed Jaimini to deposit Rs 5,000 with the Regional Passport Authority as cost of the petition.

Bombay HC reduces jail term of girl who killed abusive brother
Mayura Janwalkar / DNA
Monday, July 12, 2010 0:31 IST
Mumbai: Raju Gedam was a police constable who died owing to multiple injuries from stabbing. His killer was sentenced to 10-year imprisonment for culpable homicide not amounting to murder. The Bombay high court, however, took a lenient view towards his killer, for she was his 26-year-old sister.
Sharda Gedam was convicted and sentenced to 10-year rigorous imprisonment by a trial court.
The court had handed out the maximum sentence under section 304 Part I (culpable homicide not amounting to murder) even though it spared Sharda the charge of murder.
Arrested in April 2009, Sharda spent 14 months in jail before her appeal, filed from the Akola central prison, was heard by the Nagpur bench of the high court. Sharda’s counsel told the court that Sharda’s attack on her brother Raju was out of “grave and sudden provocation”.
According to the FIR lodged by the police on April 30, 2009, Raju’s body was found in the courtyard of his house under a guava tree. It was soaked in blood. The court’s order stated that Raju had come home drunk and abused his mother, Sharda, and the other sister, Vinita. He flung the plate of food given to him and lifted a wooden plank and threw it on his mother. The court was told that Raju always ill-treated the women in his family.
Raju’s post-mortem report indicated that he had several injuries on his chest, neck, arms, wrist, back and ribs. The defence also argued that this could not be one person’s doing and Sharda alone could not have inflicted so many injuries. The court, however, said the prosecution had not investigated if any other persons were involved in the attack.
Sharda’s mother and sister, who witnessed the incident, both turned hostile to the prosecution in the trial court and supported her case. The high court inferred, that although the circumstances were not enough to prove sudden provocation in this case, the FIR also brought out the ill-treatment meted out to Sharda and her family.
“Considering the age of the accused and that she is a woman and, undoubtedly, she was led to a peculiar set of mind to retaliate the behaviour of the deceased, this court is satisfied with the submission that the gravity of her act undoubtedly is toned down and the circumstances do mitigate the need of softer sentence,” justice AH Joshi observed.
Holding that the sentence already undergone by Sharda was sufficient punishment, the court ordered her release from the prison.

Delhi HC gives 18-yr-olds right to choose
Kanu Sarda / DNA
Monday, July 12, 2010 0:45 IST
New Delhi: Delhi high court has said that youth above 18 have the right to lead life on their own terms and that parents cannot force their will on them.
The court was hearing 18-year-old Shubha Arya’s plea for protection against her family. Arya had gone to America to make it big but her family persuaded her to return, saying her father was ill. The moment she returned, they took away documents and locked her up at home.
After somehow managing to escape from her family’s clutches, the girl approached Delhi high court, asking for the right to live life in accordance with her wishes.
In her petition, Shubha alleged she had been tricked into returning to India as her father was not ill. The real reason her family got her to return was because they wanted to get her married.
The teenager’s parents snatched away her certificates and passport and did not allow her to leave home. When she slipped away, her parents filed a missing report with police. It was then that Arya approached the court, fearing that police will take her back to her family.
Justice SN Dhingra said in response to the petition, “Being a major, Arya has the right to decide for herself and she has the right to pursue a career of her choice. Parents cannot force their will on her, in respect of marriage or in respect of career.”
The court also issued notice to Shubha’s parents to appear before it on July 21 and bring along her passport and marksheets. The court also ordered her parents and the police not to harass her. It directed the police to provide Shubha adequate protection and not to force her to reveal her present address. “In case Shubha feels it is safe for her to disclose her address to the police, she may do so.”
“The police are directed to protect Shubha from her family,” the court said.

Special LMC force licensed to demolish encroachments
Pankaj Shah, TNN, Jul 12, 2010, 02.32am IST
LUCKNOW: A dedicated force to wipe out encroachment from the city. That’s the plan Lucknow Municipal Corporation (LMC) is toying with to remove encroachment from the city. Having failed badly on the front, often inviting the ire of the high court, the municipal body has petitioned the state home department as well as the director general of police to let the civic body have a ‘dedicated force’ armed with ‘policing’ powers enabling it to punish the encroachers. Talking to TOI, city mayor Dinesh Sharma said that non-availability of police force at the time of need has been the gravest constraint before the corporation in dealing with encroachers. So, LMC has demanded the state government to either allocate a dedicated police force or let them constitute one on its own. Sharma said that they do not seek any funds for the force. “The LMC would be able to generate enough funds to pay the personnel,” he said. “The idea is to allocate a set of force to each zone in the state capital. This team would be used by the zonal officers as and when the need arises,” the mayor said. The demand appears to be based on the provisions mentioned in the constitutional 74th Amendment Act which arms a local body to have city police under its control. The fact that in removing encroachment LMC heavily depends on the availability of the police personnel makes the demand even more significant. When contacted, principal secretary, home, Kunwar Fateh Bahadur said that they are yet to look into the proposal. “It is only after the proposal is studied in close details that they would say anything,” he said. Bahadur said that overall they’ll have to check on to how to go about constituting such a force. The proposed move enabling a civic body to have force of its own to remove encroachment is unlikely to have a smooth sailing, given the fate of proposal to have a dedicated security force for security of memorials in the state capital. The proposal was taken back by the Mayawati government, reportedly, on the grounds that there cannot be two forces with similar powers to register an FIR and interrogate. A force dealing with encroachers too demands such powers, which therefore has weak chances of being accepted. LMC, as a matter of fact, has been earning a bad reputation for not being able to remove encroachment even as a series of HC proceedings went heavily against it. In fact, there has been very little or no improvement in some of the localities like Aminabad, Charbagh and Hazratganj where encroachment has been rampant. More so, unauthorised constructions too have been contributing their bit in the overall poor performance of the civic body in dealing with the menace. Significantly, the UP Municipal Act, 1959 has provisions to punish the encroachers by slapping challans and recovering fine. In fact, the state urban development department has been mulling over putting in place provisions which would enable the civic bodies to slap fine and recover them on spot.

Accused of graft, Assam minister looks for cyanide
HT Correspondent, Hindustan TimesEmail AuthorGuwahati, July 12, 2010
First Published: 00:15 IST(12/7/2010)Last Updated: 00:18 IST(12/7/2010)
A Cabinet minister in Assam has sought cyanide after an RTI activist accused him of graft besides digging up “missing” documents pertaining to murder and extortion he was allegedly involved in two decades ago. “Am I the only politician in the state involved in graft? Give me cyanides to swallow if that can cleanse politics in Assam,” Assam Health and

Welfare Minister Himanta Biswa Sarma said here on Sunday.
The minister’s outburst followed RTI activist Akhil Gogoi’s allegations that he owned assets “including a TV channel disproportionate to his income”. Gogoi is the leader of Krishak Mukti Sangram Samiti.
Gogoi began going for Sarma’s jugular in June when he claimed RH Khan had gifted him a luxury car. Khan is a key accused in the Rs 1,000-crore scam in Dima Hasao district (erstwhile North Cachar Hills) involving diversion of government funds to a militant outfit.
Gogoi produced documents suggesting that Sarma and his wife had paid cash to buy two cars worth Rs 40 lakh in 2008 for their five-year-old daughter. The minister shot back saying the cars were purchased by his wife through bank loans.
Last Friday, the RTI activist produced a letter written by a bureaucrat to the state’s chief secretary in 2005 in which he sought security after Sarma had threatened him with dire consequences.
The minister played down the incident to a case of misunderstanding.
Gogoi fired another salvo on Saturday producing “missing” original documents, including case diaries of two TADA cases of the early 1990s. Sarma was accused of abetting the murder of a Youth Congress leader in one and of extortion in another. The Gauhati HC had dismissed the cases.
“We will submit them (documents) to the Supreme Court, seeking reopening of the cases,” Gogoi said.
Sarma countered: “My confessional statement, produced by Gogoi and recorded by police, was fabricated and taken under duress.”

HC grants stay to Retailers and Multiplexes from levy of service tax on rental income
Jul 11, 2010 Service Tax
Opposing the government’s decision to levy service tax on rentals, several retailers and multiplexes across cities have obtained stay orders against the move from their respective high courts over the last one month. The Union Budget for 2010-11 had brought the rental income from immovable property under the purview of service tax with retrospective effect from June 1, 2007 by treating the renting of immovable property as a service. With the best of retailers in the country making a net profit of about 2%, a service tax at 10.30% would have adversely impacted their operational viability. This forced the Retailers Association of India (RAI), the Multiplex Association of India and other retailers to go to court against the government’s move to levy service tax.
According to Thomas Varghese, CEO, Aditya Birla Retail, all major retailers like Aditya Birla Retail, Shoppers Stop, Croma, Trent, Home Solutions, Major Brands, SP Life Style, Inox and PVR Cinema filed petitions before Delhi, Mumbai and Hyderabad high courts and obtained interim stay against the service tax levy.
Retailers have two main grievances. One, that this was a state subject and the central government was trying to intervene by levying service tax, that too with retrospective effect. Two, the goods and services tax (GST) was yet to be introduced. Moreover, retailers feel that the sector is at a disadvantage due to significant VAT (value added tax) credits.
Also, according to Govind Shrikhande, CEO, Shoppers Stop, “Unlike other sectors, modern retailers cannot pass on the service tax to consumers. Logically, if GST had come into effect this year, we would have been able to set off the service tax against other items. We are hopeful that GST would come into effect next year.”
Varghese said, “Due to the high cost of occupation in India (as high as 12% of the turnover), the retail business has already become much more difficult. This is in sharp contrast to the average cost between 3% and 5% across the world.”
He said that the impact of service tax on rentals will be to the tune of 0.8% to 1.3% of the turnover, which will be a huge burden for retailers, rendering the business completely unviable.

Posted by Kamal Kumar Pandey (Adv. Supreme Court of India) at Monday, July 12, 2010

One Response

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